Hardin's Adm'rs v. Hardin

• Decision Date: 07 December 1923
• Parties: HARDIN'S ADM'RS ET AL. v. HARDIN.
• Court: Kentucky Court of Appeals

256 S.W. 417

201 Ky. 310

HARDIN'S ADM'RS ET AL. v. HARDIN.

Court of Appeals of Kentucky.

December 7, 1923

Appeal from Circuit Court, Nelson County.

Action by Emma Hardin against L. H. Hardin's administrators and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Nat Halstead, of Bardstown, and T. Scott Mayes and W. F. Grigsby both of Springfield, for appellants.

W. C McChord, of Springfield, for appellee.

CLARKE J.

L. H Hardin died intestate February 22, 1921. He was survived by his widow, the appellee, and 13 children, 11 of whom were by a former wife.

Less than three weeks thereafter, the widow entered into a written contract with his administrators and a son, Estill Hardin, by which she agreed to take a child's part (1/14) of her deceased husband's estate, in lieu of her dower and distributable share therein, in consideration of the cancellation by Estill of a parol contract by which his father had agreed to purchase and pay him $7,000 for a half interest in a tract of land. Later, she instituted this action to cancel that contract, upon the grounds that it was fraudulently obtained and was without consideration.

The chancellor found there was no fraud, but canceled the contract for want of a consideration. Counsel for appellants insist the chancellor correctly decided the question of fraud, but erred as to the question of consideration, while the position of counsel for appellee is just the reverse; but, as we have concluded the contract was void for want of consideration, the question of fraud will not be discussed.

There is no dispute as to facts with reference to the consideration. Decedent had agreed to purchase from his son Estill a half interest in a tract of land, to pay him $7,000 therefor, and had turned over to him some notes in accordance with that agreement, but no deed or other writing had been executed. Estill was insisting the sale was binding upon his father's estate, and some of the heirs were insisting it was not. At a conference of the interested parties, Mrs. Hardin suggested a named lawyer be consulted about the matter, and he was called. He advised all parties the sale was not binding, and that Estill could be made to return or account for the value of the notes by suit if he would not do so otherwise. Mrs. Hardin then offered to take a child's part in the estate if Estill would agree to cancel the sale and account for the notes, which he did, and the contract so providing was later drawn and signed.

The contract for the sale of the land by Estill to his father, not being in writing, was clearly within the statute of frauds, just as all parties were advised before the contract was executed. What then was the consideration for the widow's agreeing to take $2,600 to $3,100 less than was due her, as the contract obligated her to do?

Accepting the chancellor's finding that there was no fraud, it must be conceded all parties were acting in good faith to avoid litigation in the settlement of family affairs, although it is difficult to believe Estill was acting in good faith in threatening to sue or stand suit upon so groundless a claim. But even so, unless this fact alone will support a contract, regardless of the further fact that the threatened litigation was clearly groundless, there was no consideration for this contract.

Neither Estill nor the administrators surrendered anything more than an opportunity to litigate a groundless claim, and the widow received even less for her surrender of nearly all of her interest in her husband's estate. The fact that compromise settlements, especially of family disputes, are favorites of the law, does not dispense with the necessity for some consideration to render them valid. Nor does the fact that this agreement was made so soon after the death of Mr. Hardin affect the question of consideration for the contract as it would the question of whether a fraud was practiced upon the widow.

The single question, then, is: Can good faith alone support a settlement contract? There are cases so holding, and in 5 R C. L. at page 882, it is stated these are the better considered cases. Upon the...